comity

Idaho SCT Enforces Coeur d’Alene Tribal Court Order against Nonmembers

Matthew L.M. Fletcher

Here is the opinion in Coeur d’Alene Tribe v. Johnson. (PDF)

An excerpt:

Here, the Johnsons assert that the Tribal Court is dominated by the Tribe. They point to the tribal law stating that the Tribe has jurisdiction over the river and to the amount of the fine imposed against them. As discussed above, the Johnsons have failed to show that the Tribe does not have jurisdiction over the bed of the St. Joe River adjoining their property. Further, while the fine was large, it was only one-fifth of that authorized by the tribal code. CTC 44-24.01 (authorizing a fine of $500 per day for unlicensed encroachments). We hold that the Johnsons have failed to show that the Tribal Court was biased. 

Further, the Johnsons had more than sufficient notice and opportunity to be heard in the Tribal Court. The record shows the Johnsons were informed of the proceedings on four occasions before default judgment was entered. Despite this, they elected to simply ignore the proceedings in Tribal Court. The Johnsons were not denied due process.

New Paper on Federal and State Court Recognition of Tribal Court Convictions

Matthew L.M. Fletcher1 Comment

My new paper, “Sovereign Comity: Factors in Recognizing Tribal Court Convictions in State and Federal Courts,” forthcoming in Court Review is available for download on SSRN here.

Here is the abstract:

State and federal courts increasingly are being confronted with prosecutors moving the court to consider prior convictions in American Indian tribal courts during the sentencing phase, and sometimes earlier. If the conviction being introduced occurred in state or federal court, the instant court would be obligated to give full faith and credit to that conviction. But if the prior conviction occurred in a tribal court, state and federal courts are often confronted with unforeseen complexities. This paper is intended to parse through much of the political baggage associated with recognizing tribal court convictions. To be frank, the law is unsettled, leaving little guidance for state and federal judges in these cases, while at the same time granting enormous discretion to judges on the questions involved. The first part of this paper will provide a quick overview of the constitutional status of Indian tribes and tribal courts, as well providing a basic but sufficient introduction to relevant principles of federal Indian law. The second part will offer a summary of criminal jurisdiction in Indian Country and, in particular, what role tribes play – and how well they play it. The third part offers a short description of the key cases in the field, as well as relevant federal and state statutes, and state court rules. It also offers a short normative argument on the question of what state and federal court judges who are confronted with prior tribal court convictions should look for in these cases, especially where the defendants convicted in tribal court are not represented by counsel.

New Mexico Court Decides Indian Jurisdiction Case

Matthew L.M. Fletcher

Here is the opinion in Garcia v. Gutierrez, from the New Mexico Supreme Court (Garcia v Gutierrez — NM SCT Opinion). An excerpt:

In this case—a divorce and custody dispute between an Indian father and a
non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and
tribal courts have entered conflicting decrees. Regrettably, complete resolution of that

In this case—a divorce and custody dispute between an Indian father and a non-Indian mother whose children are enrolled members of the Pojoaque Pueblo—state and tribal courts have entered conflicting decrees. Regrettably, complete resolution of that conflict lies beyond our reach.

What we can do, however, is conclude that the state court does have jurisdiction. The tribal court—given the importance of the Pueblo’s children to its culture and its future—likely has jurisdiction; and neither is exclusive of the other. As has long been the tradition in New Mexico, the state and tribal courts must share jurisdiction under principles of comity and work out their differences, guided by universally accepted principles of doing what is in the best interests of the children. See Fox v. Doak, 78 N.M. 743, 744, 438 P.2d 153, 154 (1968) (“In making [a child-custody determination, a court’s] controlling influence should be the welfare and best interests of the child.”).

Thanks to T.L.M. for the head’s up.

CA9 Remands Nonmember Jurisdiction Case to Tribal Court

Matthew L.M. Fletcher3 Comments

Here is the Ninth Circuit’s opinion in Elliott v. White Mountain Apache Tribal Court. An excerpt:

We are sympathetic to Plaintiff’s concerns about defending her actions in an unfamiliar court system. But, because tribal court jurisdiction is plausible, principles of comity require us to give the tribal courts a full opportunity to determine their own jurisdiction in the first instance.

Here are the materials:

Elliott Opening Brief

White Mountain Appellee Brief

Arizona Inter Tribal Council Amicus Brief

Elliott Reply Brief

Fort on ICWA and Michigan Tribal-State Court Comity

Matthew L.M. Fletcher

“A Review of the Indian Child Welfare Act, M.C.R. 2.615, and Tribal Court Jurisdiction in Michigan Family Law Cases,” by Kathyrn Fort.

From the Michigan Child Welfare Law Journal [scroll to page 11].

1992 Indian Tribal Court/State Court Forum Final Report

Matthew L.M. Fletcher

The final report of this important forum is here (in pieces). Obviously parts of it are very dated, but this is important material regardless as legislative history of MCR 2.615.

Final Report Text

Appendix I — Minutes

Appendix II — Directory of Tribal Courts

Appendix III — Intergovernmental Agreements

Appendix IV — Mich. Indian Family Preservation Act

South Dakota Tribal-State Court Reciprocity Court Rule Adopted by Standing Rock

Matthew L.M. Fletcher

From the Rapid City Journal (H/T Indianz):

The Standing Rock Sioux Tribal Court will now recognize judgments made in state court and other tribal courts.

“In exchange, South Dakota’s Unified Judicial System will recognize and honor judgments made in Standing Rock Sioux Tribal Court.

Tribal Rule 23, which allows the Standing Rock court to recognize court rulings from other jurisdictions, was adopted by the tribal court and signed by tribal Chairman Ron His Horse Is Thunder.

Because of Rule 23, South Dakota courts are now authorized under state statute to recognize Standing Rock court orders and judgments.

“It is the first tribe that has actually notified us that they have court rule in place that has been signed by the chairman of the tribe and by the court,” said Judith Roberts, legal counsel for the Unified Judicial System.